Date: 19990528
Docket: IMM-5460-97
IMM-1751-98
IMM-5460-97
BETWEEN:
ALBERTO SAMANO VILLALOBOS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND:
IMM-1751-98
ALBERTO SAMANO VILLALOBOS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDERS
MacKAY J.
[1] These Reasons concern disposition of two applications for judicial review brought by the applicant in relation to decisions of the Convention Refugee Determination Division of the Immigration and Refugee Board concerning to the applicant's claim for Convention refugee status. The first decision, dated December 15, 1997, pursuant to the Convention Refugee Determination Division Rules, SOR/93-45, Rule 28, denied a motion by the applicant to the Refugee Division that his Convention refugee claim be reheard de novo. That claim had been heard by a panel of the CRDD on November 20, 1997 and in its decision of March 13, 1998 the panel set out reasons for denying the applicant's request for an oral hearing of his motion and for denying the motion for a hearing de novo, as well as its reasons for finding that the applicant is not a Convention refugee.
[2] The first of the applications for judicial review, Court file IMM-5460-97, concerns the decision of December 15, 1997 denying the request for an oral hearing and the application for a hearing de novo, and the second application in Court file IMM-1751-98 concerns the decision determining that the applicant is not a Convention refugee. The latter decision communicated by Notice dated March 25, 1998, is the same decision on the refugee claim as set out in the panel's reasons and decision dated March 13, 1998. The first of the applications seeks to set aside the decision denying the motion that there be a de novo hearing, a motion based on the ground that the panel, by creating a reasonable apprehension of bias, breached the applicant's right to a fair hearing. Much of the same argument is raised as one of the grounds upon which the panel's decision finding the applicant not to be a Convention refugee is challenged but in the second application there are also other grounds urged in relation to the panel's finding on the claim to refugee status.
[3] Both of these applications were heard together in Vancouver when decision was reserved. Upon consideration of submissions then made it is my opinion that both applications should be allowed since I am persuaded the applicant's right to a fair hearing of his application for Convention refugee status was breached by the panel's creation of a reasonable apprehension of bias in the circumstances of this case. By Order the applicant's claim to be a Convention refugee is remitted for reconsideration by a different panel of the CRDD, and these Reasons make no comment on the issues here raised in the second application, in IMM-1751-98, concerning the panel's findings in relation to the claim for Convention refugee status.
Background
[4] Mr. Villalobos is a citizen of Mexico. He arrived in Canada at Vancouver on October 6, 1995 as a visitor, travelling on a Mexican passport. After his arrival, on November 1 he made known his intention to seek Convention refugee status. He completed a Personal Information Form in March 1996 in support of his application for that status.
[5] From August 1988 to February 1995 the applicant was employed by Bancomer, a bank in Uruapan, Mexico. He was an account executive there in 1994, responsible for restructuring loans that were in default, which were then numerous because of the financial crisis affecting the Mexican peso. He claims that he became the object of personal harassment by certain clients of the bank, whose accounts he was seeking to renegotiate, and through them by the El Barzon organization which was championing the cause of debtors throughout Mexico at the time. The clients tormented him at his work, threatened him by telephone and are said to have exposed him as a homosexual to his supervisors. The organization criticized him to bank superiors. In mid-February 1995 the applicant was informed that his position was no longer needed but he believes that his employment was terminated by the bank because of the perception of his homosexual orientation as a result of the allegations of the bank's clients.
[6] After termination of his employment by the bank the applicant continued with university studies in which he had been engaged earlier and he worked part-time for the local newspaper. In September 1995 he and his brother, assigned to report on activities of the El Barzon organization, attended one of its rallies and they were physically abused. The applicant then wrote a critical article about the incident which was published at the beginning of October in 1995. Convinced that his life was in danger, and without seeking protection by the authorities, the applicant left Mexico by air for Canada.
[7] His claim to refugee status was heard by a panel of the CRDD on November 20, 1997. After the hearing, on December 4, 1997, the applicant's counsel filed a motion pursuant to the Convention Refugee Determination Division Rules, requesting that the panel be recused and that there be a de novo hearing of the application. That request was based on counsel's submissions that the panel had created a reasonable apprehension of bias through its actions on the day of the hearing. The request on behalf of the claimant was that the motion be heard orally since it was considered a complicated motion, the subject matter of which was somewhat sensitive, and since counsel wished to make extensive reference to the transcript, as well as to affidavits filed with the motion, and to case law. With the request, a notice of motion was filed, together with affidavits of the applicant and of the applicant's counsel, and a statement of law and argument in support of the motion.
[8] The CRDD advised the applicant on December 12, 1997 that the panel members who had heard the application would rule on the motion. This they did, by decision dated December 15, denying the motion, without an oral hearing. In its reasons dated March 13, 1998, the panel commented in part, in relation to the request for an oral hearing on the motion:
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...On December 15, 1997 the panel denied the request to hear the motion orally and also denied the motion itself... |
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The request to hear the motion orally was denied because in written form it clearly set out the concerns of counsel and, in the panel's view, nothing would be gained by an oral presentation. In making this decision, the panel was also mindful of the need to make judicious use of the CRDD's resources, and that the allocation of these resources to hear the motion orally may have unduly delayed other claimants waiting to be heard. |
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The allegation of a reasonable apprehension of bias
[9] In advance of the first scheduled date for hearing the applicant's claim, his solicitor had written to the registrar of the division requesting that a female interpreter be provided for the hearing. At a preliminary conference on November 20, before commencement of the applicant's hearing that day, when it appeared that a male interpreter was initially assigned, counsel raised the earlier request for a female interpreter and the panel members arranged for a female interpreter to be provided for the applicant's hearing, apparently without adverse comment by panel members. When the hearing commenced it was conducted through the female interpreter.
[10] The basis of the applicant's claim that a reasonable apprehension of bias was created by the panel on November 20 is said to be that members of the panel questioned the applicant extensively and aggressively during his direct examination by counsel; they interrupted the applicant and his counsel during that examination; and they treated his counsel overly aggressively, including an incident following the end of the hearing when decision had been reserved pending receipt of written submissions. It is said that then one of the members of the panel aggressively accused counsel of sex discrimination by reason of an alleged practice of requesting a female interpreter.
[11] By affidavit the applicant avers each of these grounds, with examples from the transcript which are said to be illustrative of the interruptions and alleged aggressive questioning by the panel members. This questioning, during the course of his direct examination, is characterized by the claimant and his counsel by their affidavits as aggressive questioning raised as though in cross-examination of the applicant. The tone and manner of questioning are said to give rise to concern. These qualities do not readily show from the transcript itself. Some sense of the panel's impatience with the pace of the hearing may be discerned in comments of panel members when the applicant's counsel stated for the record her concern that time constraints of the panel were adversely affecting the applicant's right to a full opportunity to have his claim heard.
[12] The claimant by his affidavit also avers that he saw panel members gesturing and making faces, almost laughing several times when he was talking, but especially when his counsel was talking. He further states that he was not comfortable in giving his evidence before the panel because of their apparent attitude. At the lunch hour, when the applicant's direct evidence was considered finished, he felt he had already lost his refugee claim. In her affidavit counsel notes that
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The Board Members questioned the Applicant extensively during my direct examination of the Applicant. They interrupted me and they cut off his explanations. They stated that they did not want to hear the Applicant repeat what he had stated in his Personal Information Form. |
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[13] Before and after the lunch break, counsel sought to place her concerns about the hearing on the record. The following excerpts from the transcript relate to general concerns of counsel, other than concerns about the interpreter's work in the hearing:
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PRESIDING MEMBER: I think we've had exhaustive answers -- or at least -- they may not be exhaustive but they're comprehensive, at least twice to what the man fears on all counts. Was there something else that you're trying to get him to say? If so -- |
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PRESIDING MEMBER: -- I wish you would lead so we can have lunch. |
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MEMBER SACHADENA: That's right. Enough already. |
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COUNSEL: I'm just trying -- |
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PRESIDING MEMBER: I don't want to miss anything but I -- |
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COUNSEL: -- to get my client's full evidence on the record. I'm sorry if I'm testing your patience. |
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PRESIDING MEMBER: But we have had extended answers to that question, more than once. |
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PRESIDING MEMBER: You'll have lots of opportunity to amplify things this afternoon, is what -- okay, we're going to break for lunch but we're going to have a short one. We'll resume in an hour's time at quarter to 2:00. And our aim will be to conclude this hearing by 4:30 today. Okay, we're adjourned. |
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PRESIDING MEMBER: We're back on the record and we'll -- we'll have the RCO pose her questions now. We have a little direction for you, not to be limited to it, but with a view to trying to get through on time. If you could canvass the Pepsi Cola incident which is not in the PIF, state protection again, IFA, and the nexus to political opinion or perceived political opinion. |
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COUNSEL: Before the RCO begins, if I could just take a short moment to state for the record a few concerns that I have. ... |
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My second concern is with respect to the apparent time constraints that this hearing is under. I appreciate that the members are under an obligation to expedite the hearing. However, it's my submission that this is quite a complex case. Evidence such as, you know, my client's understanding of the political context at the time that -- that his problems arose are material. The members have objected several times to my questions or my client's answers as being a repetition of what's contained in the PIF. The members have not, however, stated for the record, that they accept the evidence in the PIF as credible and that they will accept it as part of the evidence. |
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PRESIDING MEMBER: Excuse me, counsel. |
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MEMBER SACHADENA: It is evidence. |
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PRESIDING MEMBER: It is evidence. |
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COUNSEL: Yes, I know, but you have -- you have not allowed me to get my client to state the evidence. I mean, his story is what's set out in the PIF. |
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MEMBER SACHADENA: He's sworn to the accuracy of his PIF. |
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PRESIDING MEMBER: I -- go ahead. |
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COUNSEL: Well, if, for example, I just asked what you wanted me to ask and didn't ask him to go through his story, you know, potentially you could say well, what he said was inconsistent with what's in his PIF. It's my obligation to enable my client to give his full evidence and I felt that the time constraints you've been placing have hampered that. I would also submit that my client has been cut off from providing explanations to several of his statements and again, that's hampering his ability to give his full evidence. |
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So, I don't really, you know, expect you to act on this, but I want these concerns stated for the record should there be a judicial review. |
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PRESIDING MEMBER: Ms. Babcock, do you have anything? |
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REFUGEE CLAIMS OFFICER: Well, just that I believe that the panel does have a duty to focus the hearing and to ensure that it's completed in the most expeditious way possible. And you do have a duty in making your determination to consider all of the evidence and if you have it in the form of the personal information form, then it's not necessary for you to have it repeated by the claimant in order for you to have it before you for your determination. Those are my comments. |
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PRESIDING MEMBER: Thank you. Did you have comments? |
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MEMBER SACHADENA: Well, yes, because what we've been trying to -- to focus on in the -- in the time constraints have been with respect to dealing with testimony that we find repetitious. And frankly, counsel, that is not helpful to your client to have it repeated, to have the same things repeated three times. The most helpful thing would be for us to get to the point where we can actually ask the questions that the panel and the RCO would have. I'll note for the record, we started at 8:30 in the morning. |
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PRESIDING MEMBER: Nine -- |
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MEMBER SACHADENA: Quarter to 9:00 until 1:30 or 12 -- quarter to 1:00, we're still going through direct. And frankly, not a lot of information that was not already in the PIF came out of it. So really, the frustration that the panel has is with respect to moving on to questions and concerns that we have that don't seemed to have been addressed in direct examination. |
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COUNSEL: Okay, first, could you just state for the record then, what the time constraints we're under are? Which -- we are under? Are you under some obligation to absolutely have this hearing heard today, in one day, and there's no chance of moving to another day? |
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PRESIDING MEMBER: The expectation is -- the due expectation is not only that we would conclude this hearing today, counsel, but that we would do two such hearings every day. |
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INTERPRETER: The last part? |
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PRESIDING MEMBER: That we would do two such hearings every day. |
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MEMBER SACHADENA: And frankly, that depends on the complexity of the cases. And I disagree with you, counsel, of this being a very complicated case. The facts are very straightforward, so there's no reason for why it should take any more than what would be a routine case. The issue is not with respect, do we have to finish at a particular time, but we have to accept that there are a lot of claimants who are waiting to have their hearings heard. A full and fair hearing does not mean an opportunity for a person to go on and on and on. So we just need to get on with the show. Now, are you making a motion with respect to interpretation? |
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COUNSEL: I'd like to have a moment to obtain instructions from my client. |
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[14] In Thiara v. Minister of Citizenship and Immigration, Court file IMM-1353-96 (F.C.T.D.) I commented on the fine balance between controlling a hearing, while permitting reasonable presentation of an applicant's case, and intervening too much in the hearing. My perception of this case is that the panel came close to unduly interfering with the applicant's opportunity for a full and fair hearing, but I am not persuaded merely on review of the transcript that in the course of the recorded hearing as a whole that necessary opportunity for the applicant was denied. The transcript, however, includes only part of the events that occurred on November 20.
[15] The hearing had not been without some difficulties, which counsel and the panel members appear to have acknowledged in their remarks recorded in the transcript. The incident following the hearing, in my opinion, significantly shifted the balance and cannot be separated from the hearing itself in assessing whether the panel's conduct gave rise to a reasonable apprehension of bias in the mind of an informed observer viewing the matter realistically and practically throughout the course of the day. I do not suggest that the panel members were actually biased, but a reasonable apprehension of bias arises from their conduct as a whole, regardless of what they may have intended at the time.
[16] Following the hearing, when matters were no longer on the record and the interpreter and the refugee claims officer had left the room, panel members aggressively questioned the applicant's counsel in the presence of the applicant about their perception of her practice of requesting female interpreters for hearings of refugee claims. One member of the panel in particular stated repeatedly that the applicant's counsel's request amounted to sex discrimination, which she found offensive. Counsel, by her affidavit, avers that one panel member's tone and manner throughout the exchange were very aggressive and she appeared to be attacking counsel personally which made it difficult to deal with the matter, especially with the applicant present. She avers that she and the applicant were both extremely upset after his hearing, particularly after the exchange following conclusion of the hearing. The applicant was convinced he had lost his hearing and he asked counsel what the panel had against her personally.
[17] In its decision on the applicant's claim, in relation to this incident the panel suggests that at the time it was made clear that the comments did not concern the hearing that had just ended, comments which neither the applicant nor his counsel recalled, but the panel does note:
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In retrospect the panel considered that this off-the-record conversation with counsel may have been ill-advised as the case at hand was not yet completed. However the panel did not consider that it gave rise to a reasonable apprehension of bias. Applying the test, the panel believed that a reasonable person, knowing the facts, would not conclude that the exchange after the hearing created a reasonable apprehension of bias. The panel approached counsel to raise a general issue regarding interpreters and not to discuss any matter relating to this claim. |
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[18] In my opinion, a reasonable person observing the day, from the first pre-hearing issue concerning the services of a female interpreter to the end of the incident following conclusion of the hearing, would have perceived that the comments of panel members after the hearing, whatever the panel members may have intended, related to the circumstances for dealing with the applicant's claim.
[19] After the hearing, when counsel's motion and supporting documents were submitted to the CRDD with the request that the motion be heard orally the matter was referred to the panel which heard the claim on November 20 and as the panel's decision records:
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The request to hear the motion orally was denied because in written form it clearly set out the concerns of counsel and, in the panel's view, nothing would be gained by an oral presentation. In making this decision, the panel was also mindful of the need to make judicious use of the CRDD's resources, and that the allocation of these resources to hear the motion orally may have unduly delayed other claimants waiting to be heard. |
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[20] A request that a motion for recusal of a decision-maker be heard orally may not be treated lightly. In my view, it is very difficult for the person considering the motion to fully perceive the concerns of counsel, whatever the basis of written submissions, until the motion is heard with reference to legal authorities, and orally if counsel requests. The fact that the request may delay other claimants waiting to be heard is a fact of life but the delay can hardly be anticipated to be undue when it concerns, as in this case, the essential fairness of the proceedings that are the responsibility of the decision-maker concerned.
[21] I note that under the CRDD Rules, Rule 28(9) provides that in dealing with a motion the Refugee Division "on being satisfied that no injustice is likely to be caused, may dispose of a motion without a hearing". The exercise of discretion to deal with the motion in this case without a hearing raises particular concerns because the most significant basis for the apprehension of bias arises in circumstances where the evidence before the Court is that provided by affidavits of the applicant and his counsel concerning an incident involving conduct of the panel members whose recollections of the circumstances then appear in their decision disposing of the motion. It is urged on behalf of the applicant that in doing so, since it was their conduct in the post-hearing incident that was principally in issue, it was inappropriate for the panel members to be the decision-makers of the motion for a new hearing.
[22] I make no finding about that in this case. In my view it is clear that a reasonable person, observing the entire sequence of events, would have a reasonable apprehension of bias whatever the intent of members of the panel may have been. I include in those events the preliminary meeting when the issue of interpreters first arose, through the hearing to its close, then the incident following the hearing, and the motion and submissions of the applicant for a new hearing and that the panel members be recused, and the denial of the request for an oral hearing because in the panel's view "in written form it clearly set out the concerns of counsel and...nothing would be gained by an oral presentation".
Conclusion
[23] In the circumstances, I allow the applicant's application for judicial review in file IMM-5460-97, on the basis that by its conduct the panel members raised a reasonable apprehension of bias which to the reasonable observer would preclude a fair and full hearing of the applicant's claim. I make no finding in relation to that claim or to the panel's assessment of it in this case. Rather, an Order goes setting aside the decision of the panel and referring the applicant's claim back to the Refugee Division for reconsideration by a differently constituted panel.
[24] Since the relief sought in Court file IMM-1751-98 is moot by my finding in relation to the subsequent application, heard and disposed of at the same time, an Order goes simply allowing the application but specifying no particular relief.
[25] Counsel for both parties affirmed to the Registrar following the hearing that no submissions would be made about a serious question of general importance for consideration of the Court of Appeal pursuant to s-s. 83(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended. No question is certified for consideration under that provision.
JUDGE
OTTAWA, Ontario
May 28, 1999.
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